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Emerging Litigation Podcast
Wildfire Litigation: Building a Case and Establishing Liability with Ed Diab
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- [00:04]
A
Welcome to the Emerging Litigation Podcast. I'm Tom Hagee, longtime litigation enthusiast, editor, publisher, and now podcaster. I'm founder of HB Litigation, which is now part of Critical Legal Content, a business I founded in 2012 to serve as a content marketing department for law firms and litigation service providers. And now, here's today's episode. If you like what you hear, please give us a rating. Please. If you want to reach me, please check out my contact information in the show Notes. So everybody knows that earlier this year, California experienced a crazy number of wildfires. They've had almost 400 this year, and they've burned close to 60,000 acres. And they've led to the evacuation. Evacuation of tens of thousands of people. And Tragically, there were 29 reported fatalities. They stretched resources and water supplies thin. It's a subject that even managed to be political. Can you imagine as I record this, the fires are also blazing in the Carolinas. They've had more than 170wildfires just over the past weekend. This is early March in North Carolina, the largest active fire spread over 600 acres. In Polk county in South Carolina, significant fire near Myrtle Beach. Everybody's been to Myrtle beach. Has burned more than 2,000 acres. Emergency personnel are working to contain the blazes, with some fires already partially contained. These statistics highlight the growing severity of wildfires in North America, and they're exacerbated by factors such as climate change. For those who celebrate. The rising temperatures associated with this change and long droughts create ideal conditions for wildfires as things dry out. In fact, the average wildfire season has extended by nearly three months compared to the 1970s. Human activities like land development and recreational activities like camping and really disturbing activities that some people take part in, like arson, contribute to the increased frequency of wildfires. But as our guests will explain, a lot of the wildfires have to do with power lines. And not just the power lines, obviously, but the conditions the surrounding areas of the power lines. Well, arson isn't necessarily one of the major causes. It certainly is a cause. The motivations behind arson. I'll just take a little side trip here. They can vary widely. They can want revenge, financial gain, or just they want some attention. Some people just host a podcast. Of course, the psychological condition commonly associated with arsonists is pyromania, described as an impulse control disorder characterized by an irresistible urge to start fires. You think pyromaniacs often experience a sense of tension and emotional arousal before setting a fire and feel relief or gratification afterward. Not all arsonists are pyromaniacs. Hey, don't put me in a box. Some may have other underlying psychological issues like antisocial personality disorder or a history of trauma. Yeah, I'd say that's antisocial. And we really need to stop traumatizing each other. Let's, let's let that be a lesson. According to the National Interagency Fire center, the average number of wildfires in the United States has increased from about 60,000 a year in the 1980s to more than 70,000 per year in the 2010s. The area burned by these fires has also surged dramatically. For example, in 2020 alone, wildfires burned more than 10 million acres. That's a significant increase compared to the annual average of 3.3 million in the 1990s. So that's accelerating. And today we're going to dive into the world of wildfire litigation with a repeat guest. And his name is Ed Diab, a partner at Diab Chambers of California. Ed has been at the forefront of these cases, representing individuals, cities and counties and numerous wildfire cases. He is busy at as heck. And I was able to grab him for 30 minutes to talk to me again about wildfires. He answers my questions patiently about typical defendants. These are utility companies, power companies, his use of California's unique laws to bring these cases, what goes into establishing liability, what kind of teams plaintiff firms have to assemble to bring these cases, the various types of digital evidence necessary to support claims, and the typical defenses we see from companies. And he talks about developments from recent days following recent high profile wildfires from just weeks ago in Southern California. As I mentioned, he also discusses the collaboration between his firm and the national powerhouse firm Barron and Budd, which has extensive experience in environmental litigation and a firm I've been familiar with for a really long time. Wildfire litigation is just one example of the kind of emerging legal issues we're covering. So keep listening. And with that, here is my interview with Ed Diab of Diab Chambers in California. Hope you enjoy it. So, Ed Diab, thank you very much for talking with me about this again. Unfortunately, it's been wildfire season again, and if I'm not mistaken, I didn't check the news today about South Carolina, whether the Carolinas are still having trouble with their wildfires. But that was within the last few days anyway. So I guess what I wanted to get from you, some background first and then get you to update us on what you're, what you've been up to this week, what are some of the common causes of wildfires that lead to Litigation?
- [05:40]
B
Yeah, good question, Tom. What's interesting, I heard you say wildfire season in California. Now we say there is no season anymore. It's almost year round, unfortunately. To answer your question though, in terms of the ones that actually lead to litigation, you're talking about ones that are generally going to be caused by a utility company in California. There's three major ones. PGE Pacific Gas and Electric, Southern California Edison, sce, and then San Diego Gas and Electric. There's a couple other ones that we've litigated here against Liberty Utilities and things like that, but those are the three major ones. And because of California's laws, there's a California constitutional section that actually allows us to SUE the Article 1, Section 19 of the California Constitution actually allows us to sue these utilities under a theory called inverse condemnation. And it's actually underpinned with like eminent domain and a taking. And it essentially, this is not a. Don't take this as the legal explanation of it. It's more of a layperson's explanation. But in short, the state says, look, you utility company have a monopoly to provide power and in exchange for that, we're going to hold you to a really high standard, which means that if your equipment is at all involved in sort of the start of a wildfire and it's really got to be as it's deliberately designed and constructed is the magic language, then they are basically on the hook for it. Now, the utility companies to their credit have very good lawyers who are going to defend that up, down, left and right. But from a plaintiff's perspective, that's what we look at. And then just broadly speaking, we've got a team of experts that investigate all the fires. So to your question, what are the causes of these? You've got a ton of different things. Unfortunately, I believe arson is on the rise. We saw a lot of that during the LA fires, which is horrendous and despicable. I think everyone can agree with that. Sometimes you have lightning strikes. Those are obviously things that are just forces of nature, campfires, all the things that you're taught when you're a grade school kid to avoid. But those are the many causes of the fires that we've seen.
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A
And I can guess a little bit from talking to you before. But so how do you determine that the utility is liable for the fire? That they somehow are responsible? Certainly not lightning, but maybe in cases of lightning too, I don't know. But how do you determine that they're liable?
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B
Yeah, look, ultimately a true determination of liability would require A trial. Right. But in terms of how can we squeeze and push the utility company to a place where their lawyers say, hey, you know what, we've got enough exposure here to start resolving cases. There's a couple ways we do it. Number one, it's in these fires, it's really important to have experts on the ground right away. And that's because literally the evidence is changing as the fire burns on and things like that. And so these experts are on the ground. They're usually retired firefighters or ATF or different disciplines where they've had training in terms of how to look at cause and origin indicators. They're literally putting flags on the ground, tracing where the fire propagated from. So that's one way. Two, honestly, in this sort of modern world, we've got. UCSD has a great program where they've got wildfire detection cameras all over the place now. So technology's helping. Specific to the Eaton fire, which we're litigating now in Los Angeles, there was a surveillance camera footage actually from an ARCO gas station that happened to catch a flash in the hills right where the Eaton fire started. Those are the more sort of practical ways we figured these out. And, and then once we've got a location of where we think the fire started, we then bring in a host of other experts, electrical engineers, metallurgists, all these different disciplines that kind of help us understand what was the mechanism here, how did this fire start?
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A
So when you're filing claims, what typical counts are you bringing? You mentioned inverse condemnation, but what other. What counts are you bringing these under?
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B
Yeah, I think you're going to see a general negligence claim as well. The reason, strategically, and I'm not giving away state secrets here, that we bring an inverse claim is because it's got really strong teeth to it. You can ask for things like attorneys fees, costs and things associated with that interest. Negligence, again, that's the run of the mill stuff. Hey, you had a duty to do this. You didn't meet that duty. You caused problems. And then specifically for our public entity clients. So we tend to represent the public entities. In the Eaton fire case, we're fortunate to represent the county and cities that were affected by the Eaton fire will bring violations of certain California laws. There's health and safety codes for fire suppression, costs damages, things for emergency response, property damage, environmental restoration. And then there's some other causes of action we'll throw in there like trespass and nuisance. Those are more sort of legal technicalities. But I would say that usually covers the spectrum of things we're looking at.
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A
Yeah. So what would you say your biggest challenges are in these cases? And I want to talk about, like, how you've been successful in the past, but when going into this, what do you say? Okay, here are the things I have to overcome.
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B
It's a good question, Tom. I think just like any case, you really. It's that first leg of the case, which is liability. Right. There's a lot of things that happen, and often these fires are a combination of events that kind of come together. So you have red flag warnings which warn of high winds that are impending. And then you've got to look at what did the utility do in light of these warnings? Now, PSPs, these power safety shutoffs are becoming much more common and unaccepted practice. Obviously, people hate having the power out, but we've now seen the alternative. And so until the utility companies can start upgrading their infrastructure, undergrounding lines, things like that, it's just this reality of choosing between the lesser of two evils. And then at the end of the day, you've got really good lawyers who represent these power companies. They do a great job defending them in these cases. And so our task is basically trying to figure out, how did this complex network of electrical infrastructure cause this fire? In some instances, it's straightforward. We've got literally a tree that's leaning into a power line where they caused a spark, and that gets into sort of the vegetation management responsibilities that these utility companies have. In other cases, it's a little more nuanced. And so we've got to do a ton of data collection. So we work on these extensive protective orders, because at the end of the day, you're dealing with sensitive information as it relates to our national security with respect to the grid. And so we're getting these data dumps from the power companies to thread together the story and figure out what happened here. And then we try to narrow and winnow down to pinpoint where was the point of failure.
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A
Okay, gotcha. And then with the typical defendant being, say, a utility, and you can tell me other varieties you might have, but typically in your. In these cases, utilities, what sort of defenses did they bring up?
- [12:50]
B
That's a really good question. You know, with respect to utility companies, they will typically challenge the applicability of inverse condemnation. That's a law that's gotten a lot of attention in California, knock on wood. The plaintiff side has been pretty successful at beating down these challenges over the last 10 years or so, maybe frankly, even more than that. And That's a push and pull of as we like to say that again, I'm biased, I'm a plaintiff's lawyer. But again, you have a monopoly to provide power. You're an investor owned utility. That's another thing that kind of pulls them in a different direction. They're understandably just like any public company, have to show profits, return money to shareholders. I get that from a pure economic standpoint. But does that incentivize them to invest in keeping their infrastructure safe? That's where you start to get into these different, like I said, the push and the pull of it all. And so in terms of the defenses, number one, they're flat out going to say, hey, prove that it started on our equipment. Like I said, when you have a tree into a power line, it's a little tough. So maybe they start to get at, did we have responsibility for managing that tree, did we do appropriate management? And they're going to say things like, we inspected the tree, I'm making it up two years ago and it was fine. And nobody could have predicted this could have happened, things like that. We obviously have our arguments to go back and forth on that front. When it's a more complex or nuanced fire, as I might say, then you're getting into sort of the science, the fire science of how these things happen, the electrical side of things. And we might have to have a technical fight over did this policy for reclosing, for example, this device that's used to basically turn power back on when the network detects a fault, was that set appropriately? Should it have reclosed in this situation? Should it not have? So you're getting into a lot of these policy management decisions. And look, again, I'm not giving away state secrets here. Managing an electrical grid is not an easy task to be fair. And I try to always give both sides on this thing. I think they're trying to figure out, look, they don't want to be in a damned if they do, damned if they don't situation. And unfortunately, with any litigation, you're looking at it with hindsight. So do I think these utility companies are going out there intending to do this stuff? No, I think all of us can agree on that. But it's just a question of where are these sort of like boundary conditions that we believe on the plaintiff side they need to have set? And obviously on their side, they think it's a different set of standards. That's the tug between the two sides.
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A
Okay, can you just tell me, since we talked a couple of years ago. Some of those cases are. They have those cases wrapped up, settled, or what is the status of the ones that I talked to you about a couple of years ago?
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B
Yeah, gosh, it's been a while. I would say for the most part, most of these cases end up in resolution without again, giving away anything confidential in terms of the dollar values that these cases resolve for. That's driven largely by, again, how good of a liability case can we put together? Can they show us a threat that, hey, if this went to trial, we might lose? It's just like any other case you've got out there. There are some cases that are being litigated much more heavily. For instance, there's a Marshall fire in Boulder County, Colorado, that's being litigated quite a bit and may actually go to trial sometime this fall. But for the most part, largely, the California litigations have started to resolve. We were also involved in the Maui fires. There's some more, it's called procedural issues there, specifically governing how insurance companies can recover in these fires that actually went up to the Hawaii Supreme Court and is going for guidance. And so that's still being worked through. But I would say for the most part, these cases, at least the ones from a few years back, are in what I would call a resolution posture.
- [16:42]
A
Okay. All right, let's bring up, bring us up to date. As I've been reading about this, it sounds like wildfires are getting more frequent and more intense. So you've been busy the last few days dealing with the fires from earlier this year. Tell us what has happened recently.
- [16:59]
B
The world's eyes were turned to Los Angeles in early January when a series of fires broke out there. Obviously, it got widespread coverage. You had the Palisades that were completely destroyed. You had the Eaton, Eaton fire area, which is Altadena, Pasadena, parts of LA county that were, you know, again, completely decimated. And I think, frankly, the shock factor is, again, it's not comparing other fires, but generally speaking, some of the fires that we've dealt with haven't always been in these densely populated areas. You certainly had that in Hawaii. You had that in the North Bay fires that kind of hit wine country, where there's something jarring about just seeing blocks and blocks of streets that are just flat out leveled. In terms of the litigation side of things, I would say the Eaton fire is basically just getting started From a litigation standpoint. There have been, I think we're up to close to 100 cases that have been filed on behalf of individuals, public entities, insurance subrogation, and the first hearing in the case is actually March 17th, so 11 days from now. We've had several hearings in the case which have been interesting with both sides trying to figure out what we can do in terms of investigating the evidence at issue. So in the Eaton fire case you have transmission level towers, which are the high voltage steel towers that you might see. It's not the distribution level towers. These are the things that you might see on your block or your, your home neighborhoods. These are the transmission towers that move power miles and miles away. The issue there is the plaintiffs and I think the defendants would reasonably agree we've got a right to investigate and inspect the evidence. On the flip side, those transmission towers are off now and have been for some time. There was a re energization issue that happened, but putting that aside, for the most part these things have been off and our state's grid depends on this energy. So you have Edison in court saying, hey, we've got to get the power back on again. Any judge sympathetic to that's reasonable. On the flip side, the judge is also looking at the plaintiffs and saying, look, we've got a responsibility to preserve this evidence, figure out what's going on. So I think that both sides are working towards that. The judge in this case has been phenomenal in terms of trying to figure out how to balance these interests and it's not an easy task for anyone. That's the latest and greatest I would say with the Eaton fire. On the Palisades front, little trickier case. There's again, I'm not going to share any state secrets here, but publicly it looks to have been a fire that actually rekindled. So sometimes that happens as well. A fire that was originally put out starts up again. You'd be shocked at how many months sometimes can go by when fires can rekindle. So there's some litigation around there, but it's more centered on again this is my speculation now, but I think it's centered on more of the response side to the fire. There's lots of immunities there in terms of the fire response to it. So it'll be interesting to see how that litigation plays out. But yeah, I think. And then there was actually two other fires, the Hearst fire in Los Angeles and the Hughes fire in Los Angeles that we're still investigating and looking at as well. Plenty of stuff that came out of that unfortunate January that LA had.
- [20:17]
A
Are the defendants, are they strictly utilities? Because there are sometimes. Well, you mentioned other types, but are there other types of Defendants.
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B
We've had other cases where there have been other defendants. So, for instance, the mill fire was a fire in California that started at a mill where sort of wood is being processed and things like that.
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A
Okay.
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B
But I would say in most of these instances, you're talking about cases where you're dealing with utility companies. There have been some cases with a factory explosion, things like that. But I would say in terms of the litigation world, 90, 95%, probably you're talking about utilities.
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A
Okay, so who is the judge overseeing the the case or the one case?
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B
Judge Siegel in Los Angeles County Superior Court.
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A
Okay.
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B
And yeah, historically, we've had Judge Heiberger previously on a lot of the LA fires from before, who oversaw those cases. I believe he recused himself because he, I don't think, thankfully lost his home in the Palisades fire, but was evacuated or something. So it's just getting tough because everyone knows someone that's been affected by this thing. But, yeah, it looks like it'll be Judge Siegel.
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A
Yeah, yeah, we all do. I even. Yeah, no, people who've lost some. At least two people completely just lost everything. And I've got a daughter out there who's like, telling me about the smoke. And it's just. Anyway, it's just. Yeah, everybody seems to know somebody now. Tell me your firm. You guys specialize in this. Just say a little bit about your firm and who you're working with on this, because you're not a. You're not a giant shop.
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B
Yeah, we're actually a pretty small shop. Three partners, two paralegals. Diob Chambers is my firm, but we've had the fortune and pleasure of working alongside our co counsel over at Baron and Bud. They're a firm that we've known for a long time. In fact, the lead shareholder who works on me works on these cases with me. I've known for, gosh, probably 15 plus years or so. John Fisk over there and Scott Summy and his practice group. Baron and Bud's a huge national firm, works on a lot of national litigation. We partnered with them long ago, bringing our respective background and expertise. Myself having done some fire cases, their team having done a ton of environmental litigation, Literally the cases you read about in the news. And they have a lot of public entity representation experience. So that was a unique angle that we brought to the table. So the two firms have worked on quite literally every single wildfire case dating back to the 2015 fires in California. We've had a successful run. We've represented now over 100 public entities in these fire cases. And yeah, it's just a real pleasure to work. Our clients are very different. Right. We obviously have represented individual homeowners and things like that, but when you're talking about counties and cities, the clients you're dealing with on a daily basis really are the city attorneys and the county council. And so they're lawyer clients who are phenomenal that collaborate with us. They work alongside us to develop the case. So we feel really privileged and honored to do that.
- [23:21]
A
Okay. Yeah. Barron Advice, certainly. When I started writing about mass torts and asbestos in the early 80s, Fred Barron was. He was one of the top five easily in that area of law.
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B
Totally.
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A
Yeah. So it's a. So you're working with a great firm, Ed. That's all I wanted to know. I'll let you get back to what doing you're doing. Unless there's anything else you wanted to say, I appreciate your time. I know you're busy.
- [23:45]
B
No, thanks, Tom. I always appreciate meeting with you. Thanks for reaching back out. And if there's anything else we can talk about, we'd love to.
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A
Okay, will do. Thank you, Ed.
- [23:53]
B
All right, Tom. Have a good one.
- [24:00]
A
The Emerging Litigation Podcast is a production of critical legal Content, which owns the awesome brand HB Litigation. Critical Legal Content is a company I founded in 2012. That was a long time ago. What we do is simple. We create content that's critical on legal topics for law firms and legal service providers. I believe we even have a catchy tagline, which is your legal content marketing department. That kind of content can be blogs, papers, they can be podcasts, webinars, and we have a good time doing it. And S4HB litigation, well, that's the name under which we publish. Interesting. At least interesting to me. Legal news items, webinars, articles, guest articles, all on emerging litigation topics. That's what we do. Once again, I'm Tom Hagee with Critical Legal Content and HP Litigation. If you like what you hear and you want to participate, give me a shout. My contact information is in the show Notes. Thanks for listening, Sam.